Haddara v The Queen
[2014] VSCA 100
•27 May 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0282 | |
| WALEED HADDARA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH, WEINBERG and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 15 October 2013 |
| DATE OF JUDGMENT | 27 May 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 100 [1st Revision para 62] |
| JUDGMENT APPEALED FROM | [2012] VSC 517 (Kaye J) |
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CRIMINAL LAW – Admission – Evidence Act 2008 – Voice identification – Taped record of interview with police used for the purposes of voice comparison – Whether ‘admission’ for the purposes of s 90 of the Evidence Act 2008 – Whether a record of interview with police used for the purposes of voice comparison should have been excluded under s 137 of the Evidence Act 2008 – Whether any other power to exclude exists – Application for leave to appeal against conviction granted – Appeal dismissed.
EVIDENCE – Whether Ch 3 of the Evidence Act 2008 as to exclusion of admissible evidence is a ‘code’ – Existence of overarching common law discretion to exclude evidence the admission of which would be unfair to the accused – Whether common law discretion survives the Evidence Act 2008 – Effect of s 56 of the Evidence Act 2008 – Sections 90, 136, 137 and 138 considered – Whether s 464J of the Crimes Act 1958 has been impliedly repealed – McNeill v The Queen (2008) 168 FCR 198, Meteyard v Love (2005) 65 NSWLR 36 and Butcher v Lachlan Elder Realty (2002) 55 NSWLR 558, not followed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC | Garde-Wilson Lawyers |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
WEINBERG JA:
We have had the advantage of reading in draft the reasons for judgment prepared by Priest JA. His Honour has dealt thoroughly with the facts in this case, and the issues as they were outlined below.
We agree with Priest JA that the evidence of the recording of the applicant’s voice during his interview was not an ‘admission’ within the meaning of that term in s 90 of the Evidence Act 2008 (Vic) (‘the Act’). The discretion under s 90 of the Act is confined to ‘admissions.’ Clearly enough, that represents the legislature’s attempt to replicate what is commonly described as the ‘common law fairness’,[1] or the Lee[2]discretion. We agree with Priest JA’s analysis of s 90.
[1]Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence — Annotation and Commentary on the Uniform Evidence Acts (LexisNexis Butterworths, 2nd ed, 2009) 348.
[2]See R v Lee (1950) 82 CLR 133 (‘Lee’). In R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, 193 [66] (‘Swaffield’) it was said (by Toohey, Gaudron and Gummow JJ) of this discretion that ‘fairness is a vague concept … the very nature of the concept inhibits great precision’.
As is the case in Lee itself,[3] s 90 is applicable only to admissions. In Em v The Queen,[4] Gleeson CJ and Heydon J referred to the origins of s 90, which lie in the Australian Law Reform Commission’s Report on Evidence.[5] The joint judgment sets out that part of the report where the Commission recommends the introduction of a discretion corresponding to the Lee discretion to exclude otherwise admissible confessions on the ground that it would be unfair to use them against the accused.[6] Gummow and Hayne JJ also treated s 90 as generally similar to the common law discretion considered in Lee,[7] although it was a ‘discretion that will fall to be considered only after applying the other, more specific, provisions of the Act’[8] — namely ss 84, 85, 86, 137, 138 and 139.
[3](1950) 82 CLR 133.
[4](2007) 232 CLR 67 (‘Em’).
[5]Australian Law Reform Commission, Evidence, Report No 38 (1987).
[6]Em (2007) 232 CLR 67, 87 [51].
[7](1950) 82 CLR 133.
[8]Em (2007) 232 CLR 67, 104 [109].
Neither s 137 of the Act (the Christie[9] discretion) nor s 138 (the Bunning v Cross[10] discretion) has any application to the facts in this case. Section 137 is, at best, tangential, and there is no suggestion that the police behaved illegally or improperly in recording the applicant’s interview. Indeed any such suggestion was specifically eschewed.
[9]R v Christie [1914] AC 545 (‘Christie’).
[10](1978) 141 CLR 54.
There was no unfairness to the applicant in permitting the jury to listen to his voice, as recorded during the course of the record of interview. The tender by the prosecution of that recorded interview, for the limited purpose of enabling the jury to compare the applicant’s voice with the recording on the co-accused’s mobile telephone, did not give rise to any possible application of the ‘fairness’ discretion, as set out in s 90(b) of the Act. The ‘fairness’ discretion under s 90(b) incorporates, but also extends beyond, ensuring that an accused receives a fair trial. Moreover, one aspect of that ‘fairness’ discretion involves, as it always did at common law, the question of reliability.
The applicant has not demonstrated that the trial judge was in error in concluding that there was no unfairness to him in admitting the voice recording of the interview.
For the reasons given by Priest JA which amplify each of these points, we agree that leave to appeal should be granted and the appeal dismissed.
The applicant further called in aid the common law discretion to exclude evidence on the ground that its admission would be unfair to the accused and contended that on that basis the trial judge should have excluded the evidence. The applicant submitted that this general discretion survived the introduction of the Act. He further submitted that s 464J of the Crimes Act 1958 (Vic) preserves the common law discretion. These contentions were only the subject of considered argument in supplementary submissions which the parties were given leave to file.
The argument emerged because s 90 of the Act clearly represents a statutory re-enactment of the Lee discretion.[11] The Crown submitted that the applicant’s argument that the trial judge should have excluded the recording of his police interview must be rejected because he falls between at least two, and probably three, stools. He cannot invoke s 90 because the evidence of the sound of his voice, in the course of the police interview, was not tendered to prove the truth of any of his answers. It was therefore not in the nature of an admission. He cannot invoke s 137 because there is no realistic basis for the suggestion that the probative value of this evidence is outweighed by the danger of its unfair prejudice.[12] He cannot invoke s 138 because there is no suggestion that this evidence was improperly or illegally obtained.
[11](1950) 82 CLR 133.
[12]The trial judge was conscious of the possible application of s 137. However, having regard to the stringent directions given by his Honour to the jury on the dangers associated with voice identification, and the considerable benefit that the applicant derived from having the expert’s view that she could not reliably make use of the recorded interview for her purposes, there was no basis, in our view, for thinking that this evidence was relevantly ‘prejudicial’.
It is for these reasons that the Crown contends that the trial judge, though he erred in his approach to the question whether to allow this evidence to be led through the prism of s 90 of the Act, nonetheless came to the correct decision regarding that matter. The only discretion that it was said might arguably have been previously available to exclude such evidence was the common law ‘fairness’ discretion. Even if such a discretion does exist at common law, the Crown says that it has been statutorily abrogated by the enactment of the Act. This argument rests upon the propositions that Chapter 3 of the Act is in effect a code as to both admissibility and exclusion of evidence and that s 138 of the Act is intended to cover the field in relation to evidence unfairly obtained.
Priest JA, after detailed analysis, accepts the respondent’s contentions that if any common law residual ‘fairness’ discretion existed outside the realm of confessions and admissions, and was applicable to real evidence, it was confined to evidence procured by unfair conduct. Second, he accepts that any such discretion has now been overtaken by the provisions of the Act, and is no longer extant. Finally, he also concludes that s 464J of the Crimes Act 1958 has been impliedly repealed so that the common law discretion does not survive.
We consider, for the reasons that follow, that the general common law discretion to exclude evidence, the admission of which would be unfair to the accused, has survived the Act and is not confined to evidence unfairly procured. Second, Chapter 3 is not to be treated as a code as to the exclusion of admissible evidence. Accordingly, we do not accept that s 464J has been impliedly repealed although we find it unnecessary to answer the question whether it owes its survival to s 8 or s 9 of the Act.
Although the common law discretion was in our opinion available, once it became clear that the applicant’s voice came to be recorded in circumstances where he was treated perfectly fairly by the police, and was able to exercise a free choice as to whether or not to answer questions, there was little, if any, basis for the exercise of any common law ‘fairness’ discretion. The trial judge’s reasoning, regarding these matters was, if we may respectfully say so, impeccable. The trial judge’s findings on the question of unfairness, though wrongly directed towards s 90, would inevitably have led to the same conclusion if made in response to a request to exercise the general ‘fairness’ discretion to exclude the voice recording. The appeal must still fail.
Is there a general common law unfairness discretion available to exclude the voice recording?
We turn to the question whether there subsists a broad common law discretion to exclude evidence which is unfair to an accused. For almost half a century, three distinct and well defined common law discretions to exclude relevant and admissible evidence have been recognised:
(i) The first arises where the prejudicial effect of the evidence outweighs its probative value. This discretion became known as the Christie[13] discretion and was the subject of extensive consideration in the decision of this Court in Dupas v The Queen.[14] It is now reflected in the mandatory obligation to exclude such evidence under s 137 of the Act.
[13]Christie [1914] AC 545.
[14](2012) 218 A Crim R 507.
(ii)The second area of discretion arises where it would be unfair to use an admission or confession in evidence against the accused.[15] The discretion, known as the Lee discretion, is exercised where the reception of the evidence would be unfair to the accused.[16] The issue is not whether the accused was treated unfairly.[17] It will be unfair to the accused where the use of the admission or confession would result in an unfair trial.[18] Section 90 is generally similar to the common law discretion considered in Lee.
At common law, it was necessary, in considering the exercise of this particular discretion, to have regard to the means used to obtain the admission (namely whether there was illegal or improper conduct on the part of interrogating officials), the accused’s own peculiar frailties (including his or her mental and emotional state, and condition of sobriety), factors that might make the admission unreliable (and therefore unfair to be used against the accused), and the effect that tender of the admission would have upon the legitimate exercise of the right to silence.
Typically, the common law ‘fairness’ discretion arose for consideration only in circumstances where a court had already determined that a confession was voluntary, but could nonetheless, if received, lead to an unfair trial.[19] The starting point concerns the existence of a common law ‘fairness’ discretion, operating outside the field of admissions and confessions. The Lee discretion,[20] which forms the basis of much of the learning in this area was, of course, coined in the context of confessional evidence and is now reflected in s 90.
No issue arose in Lee as to real evidence, or evidence tendered for a non-hearsay purpose. However, as we shall demonstrate, there is a large and respectable body of authority in support of the view that the ‘fairness’ discretion was never confined to confessional evidence and has been enlivened to exclude identification and real evidence.
(iii) The third area of discretion arises where, as distinct from questions of unfairness to the accused, the evidence was unlawfully or improperly obtained.[21] Bunning v Cross,[22] especially the joint judgment of Stephen and Aickin JJ, has always been accepted as establishing a separate ‘public policy’ discretion for the rejection of admissible evidence.
[15]McDermott v The Queen (1948) 76 CLR 501, 506–7, 513; Lee (1950) 82 CLR 133, 150–1; MacPherson v R (1981) 147 CLR 512, 519–20.
[16]Lee (1950) 82 CLR 133.
[17]Cleland v The Queen (1982) 151 CLR 1, 18, 33.
[18]Ibid 31, 34.
[19]See Swaffield (1998) 192 CLR 159.
[20]Lee (1950) 82 CLR 133.
[21]R v Ireland (1970) 126 CLR 321, 334–5; Bunning v Cross (1978) 141 CLR 54, 74–5.
[22](1978) 141 CLR 54.
The scope of the common law discretion to exclude evidence which would be unfair to the accused
The scope of the second area of discretionary exclusion was considered by the New South Wales Court of Criminal Appeal in R v Edelsten.[23] After noting that this area of discretion had its genesis in the special tenderness which the common law had always displayed towards confessional material, the Court said:
However, if the discretion to reject evidence is to be founded on unfairness of the trial which would result from the reception of the evidence, the discretion
ought in principle to be available wherever such unfairness appears, and not only in the case of confessional evidence.[24]
After referring to unreported judgments at first instance in which it had been held that this area of discretion is not limited to confessional evidence, the Court[25] expressed its concurrence with the view that the discretion extended to evidence of identification and in appropriate circumstances to real evidence such as evidence of the results of search.
[23](1990) 21 NSWLR 542.
[24]Ibid 554.
[25]Carruthers, Allen and Badgery-Parker JJ.
Whether or not the first and second discretions described above are better viewed as specific illustrations of a general discretion, we consider it to be clear that there is a general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receive a fair trial. That general discretion is an indispensible tool if a trial judge is to have the capacity in all circumstances to discharge their overriding duty of ensuring that the accused receives a fair trial. An examination of authority strongly supports this conclusion. Many of the authorities are the subject of careful consideration in the comprehensive reasons of Fitzgerald P in R v O’Neill.[26]
[26][1996] 2 Qd R 326.
The observations of Lord Sumner in Ibrahim v The Queen[27] and Lord Moulton in Christie[28] are to the effect that the discretion to refuse to receive admissible evidence in criminal trials on the ground of unfairness is not confined to evidence of confessional statements, but is general. Viscount Simon, with whom Lords Porter, Morton of Henryton and Tucker agreed, speaking of the power of a trial judge to rule out the reception of evidence of prior similar offences, said in Harris v Director of Public Prosecutions,[29] after quoting from Noor Mohamed v The King:[30]
This second proposition flows from the duty of the judge when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused.[31]
[27][1914] AC 599, 609–10, 614.
[28][1914] AC 545, 559.
[29][1952] AC 694 (‘Harris’).
[30][1949] AC 182.
[31]Harris [1952] AC 694, 707.
In Kuruma v The Queen[32] Lord Goddard CJ, speaking for the Privy Council, said:
No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused … If, for instance, some admission of some piece of evidence, eg, a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out.[33]
[32][1955] AC 197 (‘Kuruma’).
[33]Ibid 204 (emphasis added). The cases cited in support of the discretion referred to in that passage, Noor Mohamed v The King [1949] AC 182 and Harris [1952] AC 694, were similar fact cases. Nonetheless, the existence of the exception has been reiterated on a number of occasions in subsequent statements of principle.
The existence of such a general discretion was adverted to in Driscoll v The Queen by Gibbs J,[34] who said:
Although as a matter of law a document is admissible against an accused person who has adopted it, that does not seem to me to be the end of the matter. It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused.[35]
[34](1977) 137 CLR 517 (with whom Mason and Jacobs JJ agreed).
[35]Ibid 541, citing Christie [1914] AC 545, 560; Noor Mohamed v The King [1949] AC 182, 192; Harris [1952] AC 694, 707; Kuruma [1955] AC 197, 204.
In Lee[36] the Court (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ) identified the ‘legal source’ of the discretion to exclude confessional evidence in these terms:
[A] statutory power of the Court of Criminal Appeal to quash a conviction if ‘on any ground there was a miscarriage of justice’. The trial judge would naturally, if he thought that the Court of Criminal Appeal would regard the admission of any particular evidence as constituting a miscarriage of justice, anticipate the Court of Criminal Appeal by rejecting that evidence himself.[37]
[36](1950) 82 CLR 133.
[37]Ibid 148.
In MacPherson v The Queen[38] Gibbs CJ and Wilson J said:
[E]ven if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.[39]
[38](1981) 147 CLR 512.
[39]Ibid 519.
In R v Ireland[40] Barwick CJ, with McTiernan, Windeyer, Owen and Walsh JJ concurring, referred to the general discretion which applies in all criminal cases in order to ensure fairness to an accused.[41] Stephen and Aickin JJ again made reference to that general discretion in Bunning v Cross.[42]
[40](1970) 126 CLR 321.
[41]Ibid 334–5.
[42](1978) 142 CLR 54, 69.
In Canada, before the enactment of the Canadian Charter of Rights and Freedoms,[43] the position at common law appears to have been similar to that expressed in Kuruma,[44] though perhaps less well disposed to the existence of the residual discretion.[45] In Cross on Evidence,[46] it is noted that courts in both New Zealand[47] and Northern Ireland[48] had long recognised a general discretion, at common law, to exclude unfairly obtained evidence.
[43]Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’).
[44][1955] AC 197.
[45]R v Wray [1971] SCR 272. Note, however, that three members of the Canadian Supreme Court would have excluded the evidence in question in that case purely because it would have been unfair to receive it. See generally M S Weinberg, ‘The Judicial Discretion to Exclude Relevant Evidence’ (1975) 21 McGill Law Journal 1.
[46]JD Heydon, Cross on Evidence (Butterworths, 6th Australian ed, 2000), 795 [27245].
[47]R v Capner [1975] 1 NZLR 411; R v Pethig [1977] 1 NZLR 448; R v Loughlin [1982] 1 NZLR 236, 238.
[48]R v Murphy [1965] NI 138.
Other High Court authority bears out the contention that at common law there exists a general discretion in a trial judge to exclude admissible evidence to ensure a fair trial. Its existence is illustrated in cases such as Donnini v The Queen;[49] Matusevich v The Queen;[50] Phillips v The Queen;[51] Alexander v The Queen;[52] Domican v The Queen;[53] Harriman v The Queen;[54] and Pfennig v The Queen.[55] In Harriman Brennan J said:
As the argument against admissibility in this case relied on the judicial discretion to reject evidence otherwise admissible when it is necessary to do so to secure a fair trial, it is necessary to say something about the scope of the discretion. Is there a residual judicial discretion to reject evidence revealing the commission of another offence or a predisposition to commit an offence on the ground that its prejudicial effect is disproportionate to its probative effect and the evidence is found to be admissible because its probative force clearly transcends its merely prejudicial effect? Obviously, the occasions for the exercise of such a discretion are hard to envisage, the evidence which satisfies the criterion of admissibility is unlikely to attract the exercise of the discretion. Nevertheless, one cannot exclude the possibility of a case where, despite the substantial probative force of the evidence, fairness dictates its exclusion. As against the prospect of such an exceptional case arising, the continued existence of the residual discretion should be admitted.[56]
[49](1972) 128 CLR 114.
[50](1977) 137 CLR 633.
[51](1985) 159 CLR 45.
[52](1981) 145 CLR 395.
[53](1992) 173 CLR 555.
[54](1989) 167 CLR 590 (‘Harriman’).
[55](1995) 182 CLR 461.
[56]Harriman (1989) 167 CLR 590, 594–5.
Gaudron J, with whose reasons Toohey J agreed (although differing as to her conclusion), said:
As previously mentioned, counsel for the applicant objected that the letters were highly prejudicial and bore little probative value. By so doing, counsel invoked the discretion which inheres in a judge at a criminal trial to exclude evidence which is technically admissible but which would operate unfairly against an accused.[57]
[57]Ibid 619.
The discretion to exclude evidence which is technically admissible but which would operate unfairly against an accused is an aspect of the trial judge’s overriding duty to ensure the fairness of the trial.[58] McHugh J also had no doubt that in a criminal trial ‘a judge always has the general discretion to exclude prejudicial evidence’.[59] In Pfennig v The Queen,[60] Toohey J, after referring to the joint judgment of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen[61] holding that the criterion for the admissibility of similar fact evidence is the strength of its probative force, said:
However, it remains with the trial judge to consider the prejudicial effect of the evidence and whether, in the circumstances, it is just to admit it. That is not precisely the same as saying that the evidence is admissible if its probative force exceeds its prejudicial effect. The probative force of the evidence, in accordance with the criterion discussed, is the basis for its admissibility; nevertheless, the trial judge may exclude it.[62]
A similar view was expressed by Dawson J in Sutton v The Queen,[63] that a trial judge retains a discretion to reject the evidence even if its probative value is not outweighed or transcended by its prejudicial effect.[64]
[58]Harris [1952] AC 694, 707 (Viscount Simon); cited in Harriman (1989) 167 CLR 590, 619.
[59]Harriman (1989) 167 CLR 590, 633.
[60](1995) 182 CLR 461.
[61](1988) 165 CLR 292, 294–5.
[62]Pfennig v The Queen (1995) 182 CLR 461, 507.
[63](1984) 152 CLR 528.
[64]Ibid 565.
There are a number of passages in the judgments in Ridgeway v The Queen[65] which refer to the discretion to reject admissible evidence on the grounds of unfairness as well as the discretion to reject admissible evidence that was illegally or improperly procured. Mason CJ, Deane and Dawson JJ in their joint judgment said:
[65](1995) 184 CLR 19 (‘Ridgeway’).
[I]t has long been established that once a court is seized of criminal proceedings, it has control of them and may, in a variety of circumstances, reject relevant and otherwise admissible evidence on discretionary grounds …[66]
[66]Ibid 33. See, for example, when the prejudicial effect of evidence outweighs its probative value: Driscoll v The Queen (1977) 137 CLR 517, 523, 541; Alexander v The Queen (1981) 145 CLR 395, 402–3, 417–8, 428–30, 435; Sutton v The Queen (1984) 152 CLR 528, 534, 558–9, 565; Doney v The Queen (1990) 171 CLR 207, 212.
In holding that the reception of the evidence was not unfair to the appellant because he had instigated the importation of the heroin and its supply to him,[67] their Honours also said:
[67]Ridgeway (1995) 184 CLR 19, 41.
When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances. Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.[68]
[68]Ibid 38 (citations omitted).
Brennan J said:
The purpose of the discretion to exclude evidence on the ground of unfairness is to ensure a fair trial for the accused; the purpose of the discretion to exclude evidence on the ground of unlawfulness is not to ensure a fair trial but to ensure that the conviction of the alleged offender is not bought at too high a price by reason of curial approval of — if not reward for — illegal conduct on the part of the law enforcement agency.
However, there are likely to be few occasions for exercising the Bunning v Cross discretion (as I shall call the discretion to exclude evidence on the ground of unlawfulness) divorced from considerations of fairness to the accused. The unlawful conduct of a law enforcement officer which might call for an exercise of the discretion will ordinarily occur in the course of gathering evidence for the prosecution of an offence. It was in that context that Barwick CJ in Ireland’s case spoke of ‘the protection of the individual from unlawful and unfair treatment’. And in Bunning v Cross, Stephen and Aicken JJ noted that the rubric of unfairness as discussed in King v The Queen is a concept which ‘closely approaches what was said in Ireland’s case’. Of course, the same set of facts may enliven a discretion to exclude evidence on the grounds of both unlawfulness and unfairness. …
Nevertheless, the Bunning v Cross discretion may be exercised — albeit only in rare cases — when an entrapped offender falls into the category of an ‘unwary criminal’. There may be no unfairness to the accused in admitting the evidence but the illegality of the conduct engaged in by the law enforcement agency may be so grave that the conviction of the offender would be bought at ‘too high a price’ if the evidence obtained by the illegal conduct were admitted.
When an exercise of the Bunning v Cross discretion involves no element of unfairness to the accused, the court must simply weigh ‘against each other … two competing requirements of public policy’ …[69]
McHugh J said that a trial judge has a discretion to exclude evidence obtained by unlawful or improper means irrespective of whether the admission of the evidence would be unfair to the accused:
Any unfairness to the accused in admitting such evidence is a factor which is relevant to the exercise of the discretion, but it is only a factor which might tilt the balance in a close case. Ordinarily, questions concerning unfairness to the accused in admitting evidence are dealt with under the general discretion of a judge in a criminal trial to exclude evidence whose probative value is outweighed by its prejudice to the accused’s defence.[70]
[69]Ibid 49–50 (citations omitted).
[70]Ibid 83 (citations omitted).
The joint judgment of Toohey, Gaudron and Gummow JJ in Swaffield[71] recognised that the concept of fairness within the discretion to exclude confessional statements was a vague concept of uncertainty because courts have failed to define the policy behind the discretion or considerations relevant to it.[72] Insofar as unfairness may focus upon the accused’s right to a fair trial, the joint judgment noted that that is already required by the general law. As to the fairness that may be at issue in cases involving the exercise of a discretion to exclude unduly prejudicial evidence, the joint judgment also identified the fairness of the trial in the sense that it does not involve a perceptible risk of miscarriage of justice.[73] Their Honours considered the concept of unfairness to have been expressed in the widest possible form in s 90 of the Act and that s 138 expressed in the widest terms the policy discretion developed by the common law.[74]
[71](1998) 192 CLR 159, 192.
[72]See Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) vol 2, 208–10.
[73]Swaffield (1998) 192 CLR 159, 193.
[74]Ibid 193–4.
The Full Court in Rozenes v Beljajev[75] rejected a challenge to the existence of the discretion in a criminal case to exclude any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. In that case, a County Court judge had given a ruling before trial excluding the evidence of a prosecution witness who was, on his own account, an accomplice of the defendants in relation to a major conspiracy to import cocaine. The judge concluded that the witness’s account lacked any credibility, based upon his being an accomplice, his general bad character, and his motive to implicate others. The prosecution sought prerogative and declaratory relief against that ruling.
[75][1995] 1 VR 533.
In granting declaratory relief, the Full Court (Brooking, McDonald and Hansen JJ) noted that the trial judge had referred to a number of decisions in support of the existence, at common law, of a general ‘fairness’ discretion.[76] The central issue was whether, as his Honour had held, there existed a discretion to exclude the evidence of an accomplice solely on the basis of its supposed unreliability.
[76]The judge had referred, in particular, to R v McLean and Funk; Ex Parte Attorney-General [1991] 1 Qd R 231 (Carter J); R v Chai (1992) 27 NSWLR 153; R v Peirce [1992] 1 VR 273, 274 (Vincent J).
After considering a number of authorities bearing directly upon that point,[77] the Full Court concluded that there was no example of which their Honours were aware of the actual exclusion of the evidence of an accomplice on that sole ground.
[77]R v Pipe (1966) 51 Cr App R 17; R v Turner (1975) 61 Cr App R 67; R v Thorne (1978) 66 Cr App R 6; R v McDonald [1980] 2 NZLR 102; McDonald v The Queen (1983) 77 Cr App R 196; R v Brown (1983) 21 NTR 6; (1983) 8 A Crim R 320; R v Falzon [1990] 2 Qd R 436; R v Peirce [1992] 1 VR 273, 275 (Vincent J).
What is significant for present purposes, however, is the fact that the Full Court expressly accepted that there was a ‘general or residual discretion to reject any evidence on the ground that its reception would be unfair to the accused’.[78] Faced with a direct challenge by the prosecution to the existence of any such discretion, the Full Court observed:
It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law. The proposition must be accepted that there is a discretion in a criminal case to reject any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. So much must be accepted both on principle and by reason of the authorities. It would be wrong to regard as exhaustive the two particular discretions (that relating to probative value and prejudicial effect and that established by Bunning v Cross) put forward by the Attorney-General in McLean and Funk as the only discretions available for the exclusion of evidence other than confessional evidence. But while the existence of a residual discretion must be accepted, it is not easy to think of circumstances in which grounds might exist for the exercise of that residual discretion in relation to any evidence — we are not speaking of confessions — which would not bring the case within the more specific principle whereby evidence is not to be admitted where its prejudicial effect is out of proportion to its probative value.[79]
[78]Rozenes v Beljajev [1995] 1 VR 533, 548, citing R v Edelsten (1990) 21 NSWLR 542, 552–4; R v Chai (1992) 27 NSWLR 153 (‘Chai’). In Chai the Court of Criminal Appeal was greatly influenced in its reasoning by the judgment of Carter J in R v McLean and Funk; Ex Parte Attorney-General [1991] 1 Qd R 231.
[79]Rozenes v Beljajev [1995] 1 VR 533, 549 (emphasis added, citations omitted).
R v Peirce confirms the existence at common law of a general discretion to exclude, in appropriate circumstances, ‘virtually any piece of evidence in a criminal trial’.[80] That residual discretion represented ‘the concern which has often been expressed that the rules of admissibility of evidence should not operate to produce unfairness to accused persons’.[81] More specifically, that ‘fairness’ discretion was broader in scope than the Lee discretion (which was, of course, confined to confessions and admissions). The ‘fairness’ discretion was considered to be separate and distinct from what had come to be known as the Christie[82] discretion (probative value versus likely prejudicial effect), and the ‘public policy’ discretion identified in Bunning v Cross[83] (illegally or improperly obtained evidence).
[80]R v Peirce [1992] 1 VR 273, 274 (Vincent J).
[81]Ibid.
[82]Christie [1914] AC 545.
[83](1978) 141 CLR 54.
Although the Full Court went on to say that it was not easy to think of circumstances in which grounds might exist for the exercise of that residual ‘fairness’ discretion, there was no doubt, in their Honours’ minds, that the discretion itself was well established.
The House of Lords in R v Sang,[84] whilst rejecting the existence of a discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper and unfair means,[85] also came to accept that notwithstanding the development of the common law discretions on a case by case basis, resulting in the identification of specific areas of exclusion, a general discretion to reject admissible evidence existed to ensure that the accused received a fair trial.
[84][1980] AC 402.
[85]Ibid 437.
In R v Sang, Viscount Dilhorne referred to his speech in Selvey v DPP (No 1)[86] as to:
[86][1970] AC 304.
The overriding duty of the judge to ensure that a trial is fair. His discretion to control the use of relevant admissible evidence is exercised in the discharge of this duty. It is the use of the evidence, not, save in relation to confessions and admissions by the accused, the manner in which it has been obtained with which he is concerned.[87]
Lord Salmon said:
In my opinion, the decision as to whether evidence may be excluded depends entirely upon the particular facts of each case and the circumstances surrounding it — which are infinitely variable.
I consider that it is a clear principle of the law that a trial judge has the power and the duty to ensure that the accused has a fair trial. Accordingly, amongst other things, he has a discretion to exclude legally admissible evidence if justice so requires …
The judge has a discretion to exclude evidence procured, after the commission of the alleged offence, which although technically admissible appears to the judge to be unfair. The classical example of such a case is where the prejudicial effect of such evidence would be out of proportion to its evidential value …
I recognise that there may have been no categories of cases, other than those to which I referred, in which technically admissible evidence proffered by the Crown has been rejected by the court on the ground that it would make the trial unfair. I cannot, however, accept that a judge’s undoubted duty to ensure that the accused has a fair trial is confined to such cases. In my opinion the category of such cases is not and never can be closed except by statute.[88]
[87][1980] AC 402, 439.
[88]Ibid 444–5 (citations omitted).
Lord Fraser of Tullybelton said:
The certified question raises a much more general question as to what discretion to exclude legally admissible evidence is enjoyed by the judge at a criminal trial in England. The starting point is, in my opinion, that by the law of England all evidence which is relevant is also admissible … Nevertheless evidence that is admissible in law may, in certain cases, be excluded by the judge in the exercise of a discretion which he undoubtedly possesses …
These cases are in my opinion examples of the exercise of a single discretion founded upon the duty of the judge to ensure that every accused person has a fair trial.[89]
Later in the speech his Lordship said:
I recognise that there does not appear to be any decision by an appellate court in England clearly based upon an exercise of the discretion except when the excluded evidence either (1) is more prejudicial than probative or (2) relates to an admission or confession … But notwithstanding the absence of direct decision on the point, the dicta are so numerous and so authoritative that I do not think that it would be right to disregard them, or to treat them as applicable only to cases where the prejudicial effect of the evidence would outweigh its probative value …[90]
[89]Ibid 446–7.
[90]Ibid 449.
Lord Scarman said:
In my judgment, certain broad conclusions emerge from a study of the case law. They are:
(1)that there is one general discretion, not several specific or limited discretions;
(2)that the discretion now extends further than was contemplated by Lord Halsbury and Lord Moulton in Christie’s case, or even by Lord Simon in Harris v Director of Public Prosecutions: it is now the law that ‘a judge has a discretion to exclude legally admissible evidence if justice so requires’ (Lord Reid in Myers v DPP);
(3)that the formula of prejudicial effect outweighing probative value, which has been developed in the ‘similar fact’ cases, is not a complete statement of the range or the principle of the discretion;
(4)that the discretion is, however, limited to what my noble and learned friend, Viscount Dilhorne, calls the ‘unfair use’ of evidence at trial: it does not confer any judicial power of veto upon the right of the prosecution to prosecute or to present in support of the prosecution’s case admissible evidence, however obtained.
These broad conclusions leave unresolved the critical question as to the limits of the discretion and the principle upon which it is founded. It may be, as Lord MacDermott CJ said in R v Murphy, that unfairness which will be found to be its modern justification, cannot be closely defined. One must, however, emerge from the last refuge of legal thought — that each case depends on its facts — and attempt some analysis of principle.
It is tempting to accept that there are several discretions specific to certain situations. Certainly the law has developed by reference to specific situations in which admissible evidence has been either excluded or said to be liable, at the judge’s discretion, to be excluded.
A discretion has been recognised to exclude ‘similar fact’ evidence where its prejudicial effect would outweigh its probative value. A discretion to refuse to permit a cross-examination of the accused to his record, though permissible under the Criminal Evidence Act 1898, was recognised by this House in R v Selvey. Other relevant evidence may also be excluded. Examples are: a voluntary confession obtained in breach of the Judge’s Rules; evidence obtained where the defendant has been misled into providing it; evidence obtained illegally after the commission of the offence. The instances of actual exclusion are rare: but too many distinguished judges have said that the discretion exists for there to be any doubt that it does.
Notwithstanding its development case by case, I have no doubt that the discretion is now a general one in the sense that it is to be exercised whenever a judge considers it necessary in order to ensure the accused a fair trial. R v Selvey can be seen to be of critical importance … Lord Hodson, Lord Guest and Lord Pearce, with whom Lord Wilberforce agreed, were clearly of the opinion that the discretion was a general one. Lord Hodson said at page 349: ‘Discretion ought not to be confined save by the limits of fairness’. Lord Guest said, at p 352, that the discretion ‘springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused’: and Lord Pearce echoed his words at page 360F.
The review of the authorities by this House in Selvey’s case reveals how comparatively recent a judicial development this discretion is.[91]
[91]Ibid 452–3 (citations omitted).
His Lordship then examined the historical reasons for the development of the discretion and referred to Christie[92] as a
staging-post in the development of the law. The modern discretion is a general one to be exercised where fairness to the accused requires its exercise.
Authority, therefore, strongly suggests that the discretion is based upon, and is co-extensive with, the judge’s duty to ensure that the accused has a fair trial according to law.[93]
[92][1914] AC 545.
[93][1980] AC 402, 454.
It is worth noting several other cases in which the general discretion has been successfully invoked. R v Payne[94] represents a rare example of the exercise of the discretion. The facts were as follows. The appellant was asked at a police station whether he was willing to be examined by a doctor. He was told that it would be no part of the doctor’s duty to examine him in order to give an opinion as to whether he had been fit to drive. He consented to the examination. At his trial on a charge of driving whilst intoxicated, the doctor who had examined him gave evidence of the extent to which he was under the influence of alcohol. The appellant was convicted, and appealed. The Court of Criminal Appeal quashed his conviction, holding that the trial judge had erred, in the exercise of discretion, in allowing the evidence to be given.[95]
[94][1963] 1 WLR 637; 1 All ER 848.
[95]To the same effect was R v Court [1962] Crim LR 697.
In Callis v Gunn,[96] the defendant had been taken to a police station and was there charged with stealing. While still in custody, he declined to make any statement, saying that he wished to have either his solicitor or an officer from his unit present before he did so. He was then asked to give his fingerprints. He was not cautioned that he might refuse to do so, and was not told that if he did give his fingerprints they might be used in evidence. He allowed his fingerprints to be taken. At his trial, the justices refused to permit the fingerprint evidence to be led. Without that evidence there was no case to answer.
[96][1964] 1 QB 495.
On appeal by the prosecution, the Divisional Court held, in accordance with Kuruma,[97] that there did exist a residual discretion to exclude any evidence, whether confessional or real, if there was any suggestion of it having been obtained oppressively, by false representations, by a trick, by threats, by bribes, or anything of that sort. However, there being no such suggestion in this case, the justices had not exercised their ‘fairness’ discretion correctly. The matter was remitted to be dealt with according to law.
[97][1955] AC 197.
There are references in Barton v The Queen[98] consistent with a broad approach to the court’s power to prevent an abuse of process as extending to a power to prevent unfairness generally.[99] In Jago v District Court (NSW),[100] Mason CJ referred with approval to the observation of Lord Devlin in Connelly v Director of Public Prosecutions that courts have ‘an inescapable duty to secure fair treatment for those who come or are brought before them’.[101] Mason CJ said:
[O]bjections to the discretion to prevent unfairness give insufficient weight to the right of an accused person to receive a fair trial. That right is one of several entrenched in our legal system in the interests of seeking to ensure that innocent people are not convicted of criminal offences.[102]
[98](1980) 147 CLR 75.
[99]Ibid 104–5 (Stephen J); 107 (Murphy J); 111, 115–7 (Wilson J).
[100](1989) 168 CLR 23, 29 (‘Jago’).
[101][1964] AC 1254, 1354.
[102]Jago (1989) 168 CLR 23, 29.
Each of the judgments in Jago[103] emphasises the power invested in a trial judge to ensure a fair trial. Toohey J referred to the accused’s right to a fair trial stating:
There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial.[104]
Gaudron J said:
Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused … The exercise of the power to reject evidence, either alone or in combination with the trial judge’s other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair.[105]
[103]Ibid.
[104]Ibid 71 (citations omitted).
[105]Ibid 77 (citations omitted).
Mason CJ and McHugh J in their joint judgment in Dietrich v The Queen[106] said:
The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system … [T]he right is manifested in rules of law and of practice designed to regulate the course of the trial.[107]
[106](1992) 177 CLR 292 (‘Dietrich’).
[107]Ibid 299–300 (citations omitted).
In Dietrich Gaudron J referred to the fundamental principle of the system of criminal justice that a person should not be convicted save after a fair trial according to law. Gaudron J said:
Speaking generally, the notion of ‘fairness’ is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted,[108] either because its weight and credibility cannot be effectively tested[109] or because it has more prejudicial than probative value and so may be misused by the jury.[110] In other cases, the procedures may be modified … [T]he requirement of fairness is, and in various different contexts, has been recognised as, independent from and additional to the requirement that a trial be conducted in accordance with law.
The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction, the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case.[111] Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial …[112]
The notion of a fair trial and the inherent powers which exist to serve that end do not permit of ‘idiosyncratic notions of what is fair and just’[113] any more than do other general concepts which carry broad powers or remedies in their train. But what is fair very often depends on the circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values. It is because of these matters that the inherent powers of the court to prevent injustice are not confined within closed categories.[114]
[108]Citing McDermott v The King (1948) 76 CLR 501, 511–15 (Dixon J); Driscoll v The Queen (1977) 137 CLR 517, 541 (Gibbs J).
[109]Citing McDermott v The King (1948) 76 CLR 501, 511–15, (Dixon J); Lee (1950) 82 CLR 133, 144.
[110]Citing Christie [1914] AC 545, 560; Harris [1952] AC 694, 707; Driscoll v The Queen (1977) 137 CLR 517, 541 (Gibbs J).
[111]Citing Cocker v Tempest [1841] 7 M & W 501, 503–4; (1841) 151 ER 864, 865; Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264, 270; Wentworth v New South Wales Bar Association (1992) 176 CLR 239, 252–3.
[112]Citing Connolley v Director of Public Prosecutions [1964] AC 1254, 1301–2, 1347; Barton v The Queen (1980) 147 CLR 75, 96, 107; Jago (1989) 168 CLR 23, 75.
[113]Citing Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221, 256 (Deane J).
[114](1992) 177 CLR 292, 363–5 (remaining citations omitted).
As Fitzgerald P observed in R v O’Neill:[115]
[T]he right not to be tried unfairly is a fundamental human right, as is recognised by Article 14(1) of the International Covenant on Civil and Political Rights, which has been ratified by Australia. Although Article 14(1) of the Covenant has not thereby become part of Australian law, statutes should be interpreted, as far as the language permits, in conformity with the terms of international instruments, which may also be used by the courts as a legitimate guide in developing the common law. While, as a matter of strict logic, that may leave the content of the right to a fair trial unresolved, its fundamental nature and its character as an individual right support a conclusion that it is absolute, and unqualified by other interests, or matters such as limits on the state’s capacity to provide a trial which is fair.
[115][1996] 2 Qd R 326, 415 (citations omitted).
It would be both artificial and inflexible to suggest that, where an accused is faced with the prospect of an unfair trial because the Crown wishes to lead particular evidence, the only recourse available at common law is to seek a stay on the basis of abuse of process, rather than the exclusion of that particular piece of evidence. The hurdle to be overcome in seeking a stay is obviously much greater than that to be overcome in seeking a favourable exercise of an exclusionary discretion.
There will undoubtedly be circumstances in which the common law will provide a basis for the exclusion of relevant evidence which works unfairness to the accused because there is no provision in the Act which renders it inadmissible and no provision enabling its exclusion.[116]
[116]For example, where evidence may controvert an acquittal: see, eg, Carroll v The Queen (2002) 213 CLR 635; Washer v Western Australia (2007) 234 CLR 492, 508–9 [37].
The position at common law, therefore, seems entirely clear. It was exactly as described by the Full Court in Rozenes v Beljajev.[117] The discretion to exclude any evidence, whether confessional or real, on the ground that to receive it would be unfair to the accused (in the sense that the trial would be unfair), was alive and well, both before and after Lee.[118] The Bunning v Cross[119] discretion was analytically, and practically, separate and distinct. The Christie[120] and Lee discretions were illustrative of that general unfairness discretion.
Has the common law general fairness discretion to exclude evidence which would be unfair to the accused survived the introduction of the Evidence Act?
[117][1995] 1 VR 533.
[118](1950) 82 CLR 133.
[119](1978) 141 CLR 54.
[120][1914] AC 545.
We now turn to the Crown submission that the provisions of the Act have overtaken the general common law discretion to exclude evidence if its admission would be unfair to the accused. The Crown submitted that no common law exclusionary discretion survived the introduction of the Act. That contention accords with the view expressed by Stephen Odgers in the second edition of his Uniform Evidence Law in Victoria that, save for s 90 relating to admissions, there is no discretion otherwise to exclude prosecution evidence on the basis that, having regard to the circumstances in which the evidence was obtained, it would be unfair to a defendant to use the evidence — a position which the author acknowledges contrasts with the position at common law.[121] While Odgers suggests that unfairness in the manner in which evidence has been obtained is required to be dealt with under other provisions of the Act, in particular s 138, the Act confers no power on the court to otherwise exclude evidence that would be unfair to the defendant, and which would result in an unfair trial. As we explain, that contention cannot be sustained.
[121]Stephen Odgers, Uniform Evidence Law in Victoria (Thomson Reuters, 2nd ed, 2013), 10–11 [1.1.40]. Compare R v Edelsten (1990) 51 A Crim R 397; R v Pearsall (1990) 49 A Crim R 439; Police v Jervis; Police v Holland (1998) 70 SASR 429; R v Schuurs [1999] QSC 176; R v Grant (2001) 127 A Crim R 124.
Conceptually, there is some potential overlap between the s 90 and the s 138 public policy discretions.[122] Notwithstanding that potential, the focus of each discretion is quite different. There are procedural and substantive differences between the two discretions. The s 90 discretion places the burden of persuasion upon the accused,[123] whereas the s 138 discretion places that burden upon the prosecution, once the accused has persuaded the court that a relevant impropriety or illegality has occurred. The s 90 discretion focuses upon the unfairness to the accused in using the admission arising from the circumstances in which the admission was made. The s 138 discretion treats the individual circumstances of the particular accused as very much a secondary factor.[124] Neither provision encompasses the breadth of the general unfairness discretion at common law.
[122]In Swaffield (1998) 192 CLR 159, 178, Brennan CJ suggested that the public policy discretion should deal with discretionary exclusion arising from police impropriety or illegality whereas the Lee discretion should focus on unfairness to the accused arising from unreliability. Of course, questions of unreliability are far less likely to arise when dealing with real evidence, as distinct from confessions or admissions.
[123]Em (2007) 232 CLR 67.
[124]Foster v The Queen (1993) 113 ALR 1.
Plainly, nothing in the Act impinges upon the obligation that rests upon every trial judge to ensure that the accused receives a fair trial. The Law Reform Commission itself said that this obligation was ‘adequately enshrined in the common law’ and that its inclusion in the Uniform Evidence Acts would be ‘redundant and potentially counterproductive’.[125] One is thus driven to ask how the trial judge is to discharge that duty where evidence which would make the trial unfair cannot be excluded under any of the specific provisions in the Act.
[125]Australian Law Reform Commission, Review of the Uniform Evidence Acts, Discussion Paper No 69 (2005), 68 [2.99].
Odgers accepts that common law evidentiary principles continue to apply in various areas that have not been carved out by the Act.[126] In that regard, he is at one with the Australian Law Reform Commission, which recognised that even after the Act was enacted there would continue to be significant scope for both statutory and common law rules of evidence to operate, particularly those evidentiary rules that could be classified as part of the substantive law, or closely linked thereto.
[126]Odgers, above n 121, 10 [1.1.40].
Some examples will suffice. The law relating to the incidence of the burden of proof, the parol evidence rule, the doctrines of res judicata and issue estoppel and the law relating to presumptions are all common law doctrines which, it is generally agreed, have survived the introduction of the Act. So too have a number of procedural rules that are closely linked to the law of evidence. These include the taking of evidence on commission, notice of alibi requirements, and the law relating to no-case submissions. In addition, the principles governing the admissibility of extrinsic evidence to assist in the interpretation of wills, deeds and other instruments all fall outside the scope of the Act.
Odgers recognises that the Act does not abrogate the underlying principle of the accusatory and adversarial system that forms the basis of our criminal justice system. He warns, however, of the dangers of failing to appreciate how much of the common law has been abrogated. He draws attention to Butcher v Lachlan Elder Realty Pty Ltd[127] where the New South Wales Court of Appeal concluded that s 9 of Evidence Act 1995 (NSW) operated to preserve the common law rule relating to an admission by a predecessor in title. He challenges the correctness of that decision, noting that Part 3.4 of the Evidence Act 1995 deals with admissions, and in his view, intends to ‘cover the field’ in doing so.[128]
[127][2002] NSWCA 237.
[128]Odgers, above n 121, 54 [1.1.1110].
Odgers[129] suggests that Chapter 3 of the Act constitutes a code for the rules relating to the admissibility of evidence — that common law rules relating to admissibility of evidence are abrogated.[130] Odgers relies, as support for that proposition, upon s 56 of the Act.[131] That section provides that ‘except as provided by this Act’ all relevant evidence is admissible. Odgers suggests that the Act does provide otherwise in respect of the area of admissibility of evidence. He relies upon the language of that provision as impliedly repealing all other statutes that deal with questions of admissibility on the basis that s 56 ‘covers the field’ regarding those matters.[132]
[129]Ibid.
[130]Ibid 10 [1.1.40].
[131]Odgers’ analysis is supported by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346.
[132]Odgers, above n 121, 9.
Section 56 in part restates the most basic of common law rules regarding admissibility, namely that all evidence, in order to be admissible, must first pass the threshold of relevance. We do not need to consider whether the Act effectively operates as a ‘code’ and abrogates any common law rules as to the admissibility of evidence which are inconsistent with its provisions — a conclusion which arguably flows from the terms of s 56(1) which were described as ‘typical provisions’ by McClelland CJ in Eq in Telstra Corporation v Australis Media Holdings (No 2).[133] His Honour said that if the evidence is ‘relevant’ and is ‘not excluded by any provision of the Act’ it is ‘admissible in the proceeding.’[134]
[133](1997) 41 NSWLR 346, 349.
[134]Ibid.
The issue here is what provisions of the Act provide otherwise. There are numerous provisions in the Act which declare particular evidence to be inadmissible. For example, evidence that is relevant may be rendered inadmissible, in the case of admissions, by virtue of provisions such as ss 84 and 85 of the Act. Likewise, evidence of ‘tendency’ or ‘coincidence’ that is relevant, but fails to meet the requirements of ss 97 and 98, will be inadmissible. This explains why the New South Wales Court of Criminal Appeal, in R v Ellis,[135] concluded that ss 97 and 98 ‘covered the field’ in relation to tendency or coincidence evidence to the exclusion of common law principles governing the admissibility of similar fact evidence. Prior to Ellis,[136] there had been a preponderance of authority, some of it emanating from judges of great experience,[137] in favour of the continued application of the common law, as laid down by the High Court in Pfennig v The Queen.[138] No one today doubts that Ellis[139] was correctly decided insofar as it held that matters of tendency or coincidence were now to be dealt with strictly in accordance with the language of ss 97 and 98. Such evidence, if admissible, may be subject to exclusion.[140]
[135](2003) 58 NSWLR 700 (‘Ellis’).
[136]Ibid.
[137]See, for example, R v Lock (1997) 91 A Crim R 356 (Hunt CJ at CL); R v AH (1997) 42 NSWLR 702 (Hunt CJ at CL, Ireland and Levine JJ); R v Fordham (1997) 98 A Crim R 359 (Hunt CJ at CL and Smart J, Howie AJ expressing doubts).
[138](1995) 182 CLR 461.
[139](2003) 58 NSWLR 700.
[140]See s 101 of the Act.
In the realm of discretionary or mandatory exclusion, s 56 is no longer relevant. It has always been understood that evidence that is relevant is admissible, subject to the possibility that it may have to be excluded pursuant to an exclusionary rule of evidence. Evidence that was admissible could, nonetheless, be excluded in the exercise of judicial discretion. Such evidence was never treated or described as ‘inadmissible’.
We have already referred to passages from Harris,[141] Driscoll v The Queen,[142] Harriman[143] and Hoch v The Queen[144] which show that a discretionary exclusion has always arisen at common law upon the evidence being found to be admissible. Some further reference to authority serves to demonstrate that admissibility is an antecedent question to exclusion, the latter depending upon the admissibility of the evidence. In Ibrahim v The Queen[145] Lord Sumner, speaking then of more modern developments, observed that objections to the receipt of confessional statements went logically ‘to the weight and not to the admissibility of the evidence’.[146] In Kuruma,[147] Lord Goddard CJ, in rejecting the submission that evidence obtained illegally was for that reason inadmissible, formulated the test ‘whether evidence is admissible is whether it is relevant to the matters in issue’[148] — now to be found in s 56 of the Act. His Lordship then said in the passage we have earlier set out that in a criminal case, ‘the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused’.[149]
[141][1952] AC 694.
[142](1977) 137 CLR 517.
[143](1989) 167 CLR 590.
[144](1988) 165 CLR 292.
[145][1914] AC 599.
[146]Ibid 610.
[147][1955] AC 197.
[148]Ibid 203.
[149]Ibid 204.
In Lee,[150] reference was made to the judgment of Latham CJ in McDermott v The King.[151]It was there recognised that though an incriminating statement or confession ‘could not be held to be inadmissible as evidence’, there was a discretion to reject the confession if it would be unfair to use it in evidence against the accused. Gibbs CJ in Cleland v The Queen[152] stated that even though a statement was voluntary and therefore admissible, the trial judge had a discretion to reject it if it was obtained in circumstances that would render it unfair to use it against him. In R v Ireland Barwick CJ, [153] referring to the admission of photographs taken against the will of the accused, stated that evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. The judge had a discretion nonetheless to reject the evidence. Similarly, in Bunning v Cross,[154] the majority held that evidence of a breathalyser test administered in contravention of the requirements of the law was admissible but subject to the discretion to exclude it where the evidence was the product of unfair, unlawful or improper conduct. Although decisions of the House of Lords in Kuruma,[155] R v Sang,[156] and Morris v Beardmore[157] were at variance with Ireland[158] and Bunning v Cross[159] as to the existence of the discretion to refuse evidence obtained by improper or unfair means, it was recognised that the Christie[160] discretion operated in respect to relevant and admissible evidence.[161] Murphy J in Cleland v The Queen dealt with the ‘general discretion to exclude admissible evidence’.[162] Deane J, in the same case, approved the remarks of Wells J in R v Barker,[163] in which the distinction was drawn between the fascicule of rules governing the admissibility of confessions and the discretionary power to exclude them.[164] In Em,[165] Gleeson CJ and Heydon J in their joint judgment referred to the passage from Lee in which the Court had said that no question of discretionary exclusion arises where the statement in question is a non-voluntary statement as it is ‘legally inadmissible’.[166] If it is voluntary the ‘circumstances may be proved which call for an exercise of discretion’.[167] As Fitzgerald P explained in R v O’Neill:[168]
Consistently with the right of an accused person not to be tried unfairly, admissible evidence should not be received in a criminal trial if its reception would be unfair to the accused. The power to reject such evidence is not concerned with inadmissible evidence — which must also be rejected — but with evidence which is admissible …[169]
[150](1950) 82 CLR 133, 150–1.
[151](1948) 76 CLR 501, 506–7.
[152](1982) 151 CLR 1, 5.
[153](1970) 126 CLR 321 (‘Ireland’), 334–5.
[154](1978) 141 CLR 54.
[155][1955] AC 197.
[156][1980] AC 402.
[157][1981] AC 446.
[158](1970) 126 CLR 321.
[159](1978) 141 CLR 54.
[160][1914] AC 545.
[161]R v Sang [1980] AC 402, 437.
[162]Cleland v The Queen (1982) 151 CLR 1, 15.
[163](1978) 19 SASR 448.
[164]Ibid 456–7.
[165](2007) 232 CLR 67.
[166](1950) 82 CLR 133, 150–1.
[167]Em (2007) 232 CLR 67, 88 [54].
[168][1996] 2 Qd R 326.
[169]Ibid 416.
Thus, at least since Kuruma,[170] the common law has always articulated that evidence that is relevant to the matters in issue is admissible, and s 56 maintains that formulation. It speaks of evidence that is relevant being ‘admissible’, and evidence that is not relevant as being ‘not admissible’. Section 56 does not dictate a different approach to the common law that once the evidence is found to be admissible under the Act, the exclusionary powers may then be engaged to exclude ‘admissible’ evidence. The scope of the trial judge’s discretion or mandatory obligation to exclude evidence under the Act is not concerned with the legal admissibility of the evidence. The question of exclusion does not arise unless the evidence is admissible.
[170][1955] AC 197.
An examination of other aspects of the Act supports the conclusion that s 56 is not concerned with exclusionary principles but with what is legally admissible. At the commencement of Chapter 3, ‘Admissibility of Evidence’, there is an introductory note providing an outline of the Chapter. The note provides that Part 3.4 ‘is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule’. Part 3.11 ‘provides for the discretionary and mandatory exclusion of evidence even if it would otherwise be admissible’. This introductory note reflects the statutory scheme which contains a variety of provisions stipulating in explicit terms that certain types of evidence will not be admissible. It generally reflects the position as it pertained at common law. For example, in Em,[171] Gummow and Hayne JJ contrasted the form of s 90 with ss 84, 85 and 86 of the Act, the latter ‘set[ting] out rules whereby in stipulated circumstances evidence of certain admissions is not to be admitted’. Most of the rules set out in Part 3.4 of Chapter 3 of the Act expressly state that evidence of a particular type is inadmissible. By contrast, s 90 confers a discretion where to use the evidence would be unfair to a defendant.
[171](2007) 232 CLR 67, 101 [94].
The words ‘except as otherwise provided by this Act’ in s 56(1) are to be understood as referring to these explicit provisions which declare particular categories of evidence to be inadmissible. It does not affect provisions that confer power to exclude evidence that is admissible — which is the area in which exclusionary discretions operate at common law. With respect to those who have suggested otherwise, we do not agree that the discretionary provisions of exclusion bear upon whether ‘relevant’ evidence is admissible. An examination of the text of the provisions in Chapter 3 indicates that the evidence, though admissible, may be excluded. Under ss 90, 137 and 138 of the Act, the language used is not that of inadmissibility as such, but rather ‘may refuse to admit evidence’ or ‘is not to be admitted unless’. These provisions do not, in that sense, match the language of s 56. Contrary to the view expressed by Odgers,[172] the power to exclude is enlivened because the evidence is admissible but subject to exclusion.
[172]Odgers, above n 121, 10–11 [1.1.40].
There is some authority for the view that Chapter 3 of the Act is a ‘mini-code’ covering the field in relation to the admissibility of relevant evidence.[173] In Robertson v Woolworths Ltd,[174] the common law discretion discussed in Ridgeway[175] was said not to have survived the enactment of the Act, as it manifested a clear intention to replace the general law discretion to exclude such evidence.[176] Similarly, in R v Kovacs the New South Wales Court of Appeal stated that the Christie discretion had now been overtaken by s 137.[177]
[173]Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346, 349–50; McNeill (2008) 168 FCR 198; Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640; El Dupont de Nemours & Co v Imperial Chemical Industries plc (2002) 54 IPR 304.
[174](2005) 64 NSWLR 612.
[175](1995) 184 CLR 19.
[176]Robertson v Woolworths Ltd (2005) 64 NSWLR 612, 619 [24] (Basten JA), 630 [94] (Hall J).
[177](2000) 111 A Crim R 374, 380 [23]–[24].
However, Black CJ, Lander and Besanko JJ concluded in McNeill v The Queen[178] that while the Evidence Act of Norfolk Island was not a code in the ‘wide sense’, it covered the field of admissibility and was capable of impliedly repealing other legislation, specifically a provision of the Criminal Law Act 1960 (NIS) which excluded confessions obtained by untrue representations.[179] Those observations were referred to with approval by Emerton J in Director of Public Prosecutions v Gibson.[180] In McNeill,[181] the relevant provisions of the Criminal Law Act were said to be impliedly repealed because the same subjects were dealt with in ss 85 and 138 of the Act. Both of those provisions were considered ‘wider’ than the pre-existing rules. However, none of the exclusionary provisions of the Act are as wide as the general common law unfairness discretion.
[178](2008) 168 FCR 198 (‘McNeill’).
[179]Ibid 209 [57]–[59].
[180](2012) 61 MVR 261; [2012] VSC 297.
[181](2008) 168 FCR 198.
The Court in McNeill also thought that the Act abrogated all of the common law rules relating to admissibility of evidence.[182] Certainly, identified common law discretions have been found to be supplanted by the Act. Thus, in Em[183] it was accepted that there was no longer a common law discretion to reject admissions on the basis of unfairness, there being no relevant distinction between s 90 and the common law as declared in Swaffield[184] in enacting s 90. But, with respect, the reasoning in McNeill also rested upon the erroneous assumption that s 56 governed exclusionary as well as admissibility provisions,[185] a matter to which we have already referred.
[182]Ibid 209 [59]–[60].
[183](2007) 232 CLR 67.
[184](1998) 192 CLR 159. See also R v Em [2003] NSWCCA 374, [107].
[185]McNeill (2008) 168 FCR 198, 209 [60]–[62].
Other authority concludes that, by virtue of ss 8 and 9, common law rules of admissibility are unaffected, except where those rules are provided for expressly or by necessary intendment in Chapter 3.[186] The Act cannot function as a code as it contemplates the incorporation of external legislation by s 8. There is no room for implied repeal where there is an express provision in the Act to the effect that the Act is not intended to, and does not, affect other state or federal legislation making provision for the admission of evidence.[187] As such, it cannot be said that, as a matter of comity,[188] this Court is bound to accept the conclusions of either line of authority.[189]
[186]Meteyard v Love (2005) 65 NSWLR 36; Butcher v Lachlan Elder Realty (2002) 55 NSWLR 558. See also Pepsi Seven-Up Bottlers Perth Pty Ltd v Federal Commissioner of Taxation (1995) 62 FCR 289, 301; Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation; Alston v Court of Coal Mines Regulation (1997) 42 NSWLR 351, 392.
[187]R v Gover (2000) 118 A Crim R 8, 14 [21]; see also Evans v The Queen (2007) 235 CLR 521, 540 [65] (Kirby J), 575 [195], 587 [224] (Heydon J); McNeill (2008) 168 FCR 198, 208 [57].
[188]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492.
[189]There is also conflict among academic writings as to whether Chapter 3 covers the field: see Odgers, above n 121, 10 [1.1.40]; JD Heydon, ‘The Non-Uniformity of the “Uniform” Evidence Acts and Their Effect on the General Law’ (2013) 2 Journal of Civil Litigation and Practice 169, 176.
On careful analysis, those cases which suggest that the Act is a code are authority only for the proposition that the exclusionary provision under the Act with which each of those cases was concerned related to a specific area in which a common law discretion had previously operated. Thus it may now be said that s 137 replaces the Christie[190] discretion, s 90 replaces the Lee[191] discretion and 138 replaces the Bunning v Cross[192] and Ridgeway[193] discretion. Beyond that, neither authority or principle constrains us to conclude that the Act precludes the application of the general common law discretion.
[190][1914] AC 545.
[191](1950) 82 CLR 133.
[192](1978) 141 CLR 54.
[193](1995) 184 CLR 19.
We are fortified in our views by the extracurial observations of Justice Heydon in his article ‘The Non-Uniformity of the “Uniform” Evidence Acts and Their Effect on the General Law’.[194] He said of s 56 of the Act that the words ‘except as otherwise provided by this Act’ appear to apply only to the legislative provisions dealing with the rejection of relevant evidence so that courts are deprived of the power to develop new rules for the exclusion of relevant evidence. He rejected the wider view of s 56 expressed in McNeill[195] that Chapter 3 is ‘intended to cover the field in relation to the admissibility of relevant evidence’.[196] He referred to the principle of legality that ‘it is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’[197] as a principled argument for the view that common law rules do survive various parts of the Act as a matter of statutory construction.[198] Justice Heydon identified fundamental principles of fairness that were likely to continue. One such rule was ‘a general common law rule’ permitting the court to exclude evidence if its reception would deny the accused a fair trial. He said that rule ‘may operate more widely than the avenues for exclusion in ss 135 and 137’.[199] Another example was the rule in Browne v Dunn[200] which has been held to continue to exist despite the Act.[201] In his article, Justice Heydon concluded that where the court is considering whether a provision of the Act reflects previous law or changes it, or where it is assessing whether a gap exists in which the previous law survives, ‘in all these enterprises the previous law will inevitably exert an influence’.[202]
[194]Above n 189.
[195](2008) 168 FCR 198.
[196]Heydon, above n 189, 176.
[197]Bropho v Western Australia (1990) 171 CLR 1, 18, citing Potter v Minahan (1908) 7 CLR 277, 304.
[198]Heydon, above n 189, 177.
[199]Ibid 180.
[200](1893) 6 R 67.
[201]West v Mead (2003) 13 BPR 24, 431 [94] (Campbell J).
[202]Heydon, above n 189, 184.
Before leaving this question, we should refer to the observations of Gaudron J in Dietrich[203] which we have set out and which were referred to in Dupas v The Queen.[204] They suggest that the requirement of fairness transcends the requirement that the trial be ‘conducted strictly in accordance with law’ and is a requirement capable of impinging on evidentiary and procedural rules.[205] Whether these principles are beyond the reach of statute law to modify or abolish, or at least require an explicit and unmistakable legislative intent to do so, we do not stay to consider, but it may be that if the requirements of fairness can be traced to implicit guarantees in Chapter III of the Constitution, as her Honour suggests, any attempt to exclude the power of a judge to remedy unfairness by excluding evidence may also founder on constitutional grounds.
Does s 464J of the Crimes Act 1958 (Vic) preserve the common law discretion or has it been impliedly repealed?
[203](1992) 177 CLR 292.
[204](2012) 218 A Crim R 507.
[205]Dietrich (1992) 177 CLR 292, 363.
We come next to s 464J(c) of the Crimes Act 1958, a provision upon which the applicant placed some reliance. The section appears under the heading ‘Right to remain silent etc not affected’, and within sub-div (30A) which is entitled ‘Custody and investigation’.
Section 464J provides as follows:
Nothing in this subdivision affects —
(a)the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act; or
(b)the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or
(ba)the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d)the discretion of a court to exclude illegally or improperly obtained evidence.
In considering whether the discretion to exclude unfairly obtained evidence survives the enactment of the Act, the following matters should be noted.
First, s 464J has been amended since the enactment of the Act.[206] The legislature, when it enacted s 464J(ba), could have, but chose not to, repeal any of the other paragraphs within s 464J. That, of itself, suggests that the legislature did not regard the discretion to exclude unfairly obtained evidence referred to in s 464J(c) as having been impliedly repealed by the Act.
[206]Section 464J(ba) of the Crimes Act 1958 was inserted by Act No 69 of 2009, presumably to bring the section into line with the terminology used in s 85(2) of the Act, which together with s 84 replaced the common law relating to voluntariness as the basis for admissibility of confessions or admissions.
Secondly, s 464J(c) provides that nothing in sub-div (30A) affects the discretion of a court to exclude unfairly obtained evidence. That provision, couched in those most general of terms, arguably reflects the existence of a discretion broader than that considered by the High Court in Lee.[207] On that basis, it can be said to extend beyond confessional evidence, and into the realm of real evidence.
[207](1950) 82 CLR 133.
Just why s 464J(c) was enacted is something of a mystery. There is nothing that we can see in sub-div (30A) that purports, in any way, to diminish the ‘fairness’ discretion at common law.[208] It may be that s 464J(c) was introduced for no better reason than to make it abundantly clear that the discretion continues to exist, in tandem with any other protections afforded by the Act to suspects when questioned by police.
[208]Subdivision (30A) consists of essentially one section, s 464, with a number of additional provisions alphabetically added to it. Thus the subdivision ends with s 464ZL and extends over 147 pages of the Crimes Act 1958.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning —
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account —
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Several observations might be made about s 138. First, although s 138(2) is directed specifically to admissions, the general exclusionary rule provided for in s 138(1) is not. Secondly, evidence obtained improperly or in consequence of an impropriety is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained. Thirdly, s 138(3) spells out a variety of factors that a court may take into account in determining whether ‘the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained’, including the probative value of the evidence; its importance to the proceeding; the nature of the offence; and the gravity of the impropriety, and whether it was deliberate or reckless. Fourthly, in determining whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence, s 138(1) does not refer expressly to any ‘unfairness’ to the accused.
Notwithstanding that unfairness to the accused is not referred to specifically in s 138(3), in my opinion it remains a factor which may be taken into account when deciding whether to admit evidence obtained improperly or in consequence of some impropriety.
Although, perhaps, parts of what they had to say strictly were dicta, in Swaffield[265] Toohey, Gaudron and Gummow JJ observed of the equivalents of s 138 of the EA:
[265]R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, 193–5 [67]–[68] (citations omitted; emphasis added).
66It has been said, rightly, that fairness is a vague concept. It has also been said that the application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it. This, it is argued, makes satisfactory appellate review of the discretion difficult. The criticism has force though the very nature of the concept inhibits great precision. An approach to unfairness which focuses on whether reception of the evidence in question may have jeopardised the accused’s right to a fair trial because the statement was obtained in circumstances affecting its reliability does admit of application by a trial judge and review on appeal. However, the unfairness discretion would achieve nothing beyond what is already required by the general law if it were concerned solely to ensure a fair trial.
67 The concept of unfairness has been expressed in the widest possible form in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 90 of both Acts reads:
‘In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.’
68Neither in s 90 nor anywhere else in either Act is there to be found a definition of unfairness. Part 3.11 — ‘Discretions to Exclude Evidence’ contains a number of provisions of a general nature empowering the
court to refuse to admit evidence or to limit its use. In particular s 138(1) prohibits the admission of evidence obtained‘(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
... unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’.
This expresses in the widest terms the policy discretion developed by the common law. …
Further, there is, in my opinion, much to be said for the view expressed by Smart AJ in Farr.[266] His Honour was dealing with, among other things, evidence improperly obtained from search of a car. Having discussed a number of authorities dealing with illegally or improperly obtained evidence at common law, including Pollard,[267] he said:[268]
Sections 90 and 138 cover the two discretions which existed at common law to reject evidence on the unfairness and public policy grounds, although s 138 would seem to go further than the common law. Although unfairness to the accused is not listed in s 138(3) as one of the factors to be taken into account that does not mean it should not be taken into account. The introductory words of s 138(3) make it clear that the list in that sub-section is not exhaustive. In Pollard, Deane J indicated the approach which should usually be taken to the exercise of the public policy discretion.[269]
[266]DPP v Farr (2001) 118 A Crim R 399 (emphasis added).
[267]Pollard v The Queen (1992) 176 CLR 177.
[268]Ibid 418 [86].
[269]See also R v Helmhout (2001) 125 A Crim R 257, 259 [11] (Ipp AJA).
An examination of the statutory scheme reveals, in my view, that Smart AJ was correct when he held that s 90 and s 138 cover the two discretions which existed at common law to reject evidence on the unfairness and public policy grounds. Since s 138 is intended to cover the field previously falling within the ambit of the common law unfairness discretion, by ‘necessary intendment’ the unfairness discretion at common law is, in my view, abrogated.
As I have said, however, the applicant sought to support the continued existence of the common law discretion by reliance on s 464J(c) of the Crimes Act 1958, which provides that nothing in the subdivision of the Act in which the section falls — (30A) Custody and investigation — affects ‘the discretion of a court to exclude unfairly obtained evidence’. Section 464J(c) is found within a suite of sections dealing with the rights of persons in custody, including the rights of those who are to be interviewed by investigating officials. Thus s 464H, with specified exceptions, renders inadmissible any confession or admission unless it was recorded by audio recording or audiovisual recording.[270] The clear intent of s 464J, however, was to make clear that other rules touching the admissibility of confessions or admissions were not affected by the inclusion within the subdivision of particular exclusionary rules (such as are found in s 464H).
[270]See Pollard v The Queen (1992) 176 CLR 177; Heatherington v The Queen (1994) 179 CLR 370.
But as I have endeavoured to convey, in my view s 138 deals comprehensively and exclusively with the admissibility and inadmissibility of evidence falling under the general umbrella of ‘unfairly obtained evidence’. In so far as s 464J(c) may be considered as referring to the common law unfairness discretion it is redundant, and ought to be considered to be impliedly repealed.[271] It has been retained in the section out of an excess of caution. My view is fortified by an examination of the whole of s 464J, which provides:
[271]McNeill v R (2008) 168 FCR 198; (2008) 248 ALR 710. See also DPP v Gibson (2012) 62 MVR 261; [2012] VSC 297 (Emerton J).
464J Right to remain silent etc. not affected
Nothing in this subdivision affects —
(a) the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act; or
(b) the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or
(ba)the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence.
It will be seen that s 464J(b) refers to ‘the onus on the prosecution to establish the voluntariness of an admission or confession’. Voluntariness, however, which was a common law concept, no longer has any part to play in determining the admissibility of an admission or confession. In so far as s 464J(b) refers to ‘voluntariness’, it does not revive the defunct common law concept. On any practical level, s 464J(b) has no work to do; but, as is the case with s 464J(c), has been left in the section, it might be thought, out of an abundance of caution. Impliedly, however, it is repealed.
Further, it should be noted that s 464J(ba) was inserted into the section by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, and came into operation at the same time as the EA. The reference to ‘the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected’, is a clear reference to the requirements of s 85 of the EA. Plainly its inclusion in s 464J is intended to make clear that, questions of the admissibility and inadmissibility of admissions and confessions is not the sole province of the Crimes Act provisions to which reference has been made.
For these reasons, the submission that s 464J(c) preserves the common law unfairness discretion cannot be accepted.
My conclusions concerning the operation of Chapter 3 of the EA are based on my endeavour to construe the Act as a whole, the provisions of Chapter 3 being analysed contextually.[272] It is not lost on me that judicial support for my view — that the provisions of Chapter 3 of the EA operate as a code — is scant. But there is some — albeit limited — support.
[272]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69].
Thus, writing extra-curially, McDougall J has expressed the opinion that Chapter 3 is a code. He said:[273]
Another thing to understand about the Act, is that it is not a complete code of the law of evidence. There are a number of topics that are associated with evidence, but are not dealt with in the Act — the attribution of the burden of proof and the doctrines of res judicata and issue estoppel are just a few examples. That being said, Chapter 3 (which contains the rules on admissibility) is to be read as a complete code ...
[273]Justice Robert McDougall, An Overview of the Evidence Act, Keynote address prepared for the Young Lawyers Annual One Day CLE Seminar 2011: Evidence Act, 1–2 (emphasis added).
And in Telstra Corporation v Australis Media Holdings and Ors (No 2),[274] although McClelland CJ in Eq did not distinctly answer the question whether Chapter 3 is a code, his judgment does, in my view, lend support for the position that some parts of Chapter 3 of the EA do indeed represent a complete code. In the litigation before him the defendants sought orders that the plaintiffs produce for inspection specified discovered documents in respect of which legal professional privilege had been claimed. The plaintiffs relied on common law principles relating to imputed waiver of legal professional privilege — in the context of a common interest between the maker and the receiver of a relevant disclosure — to contend that disclosure of a privileged document to another person with a sufficient common interest to attract ‘common interest’ privilege does not constitute a waiver of the privilege and that the persons to whom the subject documents were communicated had such an interest; that disclosure of a privileged document to another person on a limited and confidential basis does not constitute a waiver of the privilege as against other persons and that the disclosure of the subject documents was made on such a basis; and that there could be no unfairness in maintaining the privilege having regard to the limited nature and the purpose of the disclosure. On the other hand, one of the defendants contended that the common law principles relied on by the plaintiffs had been displaced by s 122 of the Evidence Act 1995 and that, by virtue of s 122(4), the communication to the respective recipients of all the documents in question constituted disclosures depriving those documents of any privilege they might otherwise have had. The plaintiffs responded that the provisions of the Evidence Act1995 relating to client legal privilege are not a code and have not displaced the common law principles which they invoke.
[274](1997) 41 NSWLR 346.
With respect to the suite of provisions dealing with what had hitherto been referred to as legal professional privilege, McClelland CJ in Eq offered the view:[275]
Whether or not it is technically accurate to describe the Evidence Act 1995 as a code is not important. What is I think important is that the provisions of the Act which are relevant for present purposes are inconsistent with the principles on which the plaintiffs seek to rely. The pivotal provision is s 56(1) which states: ‘Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.’
The only part of the Act which otherwise provides in relation to what has hitherto been known as legal professional privilege (in the Act called client legal privilege) is Div 1 of Pt 3.10. In that Division, ss 118–120 operate to prohibit the adducing of evidence resulting in the disclosure of certain confidential material on the ground of client legal privilege, if certain conditions are fulfilled. Sections 121–126 operate to remove evidence from the prohibitions in ss 118–120 if certain further conditions are fulfilled. Conditions of the latter kind relating to prior disclosure of the confidential material are contained in subs (2)–(5) of s 122. …
His Honour went on to observe[276] that if there has been a disclosure of the kind to which ss 122(2) or (4) applies, and therefore a fulfilment of conditions sufficient to remove the evidence from the prohibitions in ss 118 to 120, then ‘there is no room for the operation of common law principles which would, in the absence of the Act, have prevented such a disclosure from removing legal professional privilege’.
[275]Ibid 349.
[276]Ibid 350.
Thus it may be observed that McClelland CJ in Eq recognised that at least in certain respects the provisions the Act abrogated the common law. His Honour’s view was echoed by Byrne J in Main-road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 4),[277] when he observed:[278]
The provisions of Pt 3.10, Div 1, differ from the pre-existing common law and the Evidence Act 1958. In Telstra Corporation v Australis Media Holdings, McClelland CJ in Eq concluded that the provisions of the New South Wales Uniform Evidence Act 1995 were inconsistent with the previous law concerning legal professional privilege so that the previous law did not apply to the trial before the court. I would respectfully adopt his Honour’s observations which are equally applicable to the Victorian Evidence Act 2008.
[277][2010] VSC 27.
[278]Ibid [34].
Before departing judicial statements on the topic, if only for the sake of completeness I should note that, although in Lee[279] the High Court observed that s 60 of the Act — dealing with hearsay — was ‘intended to work a considerable change to the common law’, the Court (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) offered no view as to whether or not Chapter 3 of the EA was to be regarded as a complete code.
[279]Lee v The Queen (1998) 195 CLR 594, 604 [40]. See also Justice R W White, Overview of the Evidence Act, paper delivered 30 October 2010.
Finally, although I do not derive much comfort from it, I note that in the Explanatory Statement accompanying the introduction of the Evidence (National Uniform Legislation) Act (NT) (intended to bring the Northern Territory into line with uniform evidence laws of the Commonwealth, ACT, NSW, Norfolk Island, Victoria and Tasmania), it is said:[280]
The UEA is not technically a code of the law of evidence. It does not affect the operation of other legislation, or consistent common law and equitable rules of evidence. Some topics, which are so linked to the substantive law that they can only be considered in that context, are left out. For example it does not deal with the legal and evidential burden of proof, the parole evidence rule, issue estoppel, res judicata, notice of alibi provisions, vulnerable witnesses, the standard of proof and allocation of the burden of proof, or presumptions.
Chapter 3 of the UEA, however, does cover the field of admissibility of evidence, and abrogates the common law rules, by stating in s56(1) ‘Except as otherwise provided in this Act, evidence that is relevant in a proceeding is admissible in the proceeding.’
[280]Department of the Attorney General and Justice (NT), Evidence Law in the Northern Territory from 1 January 2013: Part E — Merged copy of the Evidence (National Uniform Legislation) Act and the Explanatory Statement, 9 (emphasis added).
Survival of the common law unfairness discretion would lead to no different result
As a Parthian shot, I observe that, even if the unfairness discretion were to be regarded as having survived the enactment of the EA, it could have made no difference to the result in this case. In his careful ruling — albeit concerned with s 90 — the judge took into account and analysed the same kinds of considerations that would have animated the exercise of the unfairness discretion at common law, and found that it would not be unfair to admit the record of interview for the purposes of voice comparison. The result was, in my view, correct, and could have been no different had the judge purported to exercise the common law discretion.
Conclusion
The first ground cannot be upheld. Since success on the second ground required success on the first, it too must fail.
In light of the foregoing, I would grant leave to appeal, but would dismiss the appeal.
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